2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-18-2009

Jiang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2458

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Recommended Citation

"Jiang v. Atty Gen USA" (2009). 2009 Decisions. Paper 80.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-2458

___________

JIANQING JIANG,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A96-266-375)

Immigration Judge: Honorable R.K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 16, 2009

Before: MCKEE, HARDIMAN and COWEN, Circuit Judges

(Opinion filed: December 18, 2009)

___________

OPINION

___________

PER CURIAM

Jianqing Jiang petitions for review of an order of the Board of Immigration

Appeals (BIA). For the reasons below, we will deny the petition for review.

Jianqing Jiang, a native of China, entered the United States in April 2002. She
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applied for asylum, withholding of removal, and relief under the Convention against

Torture. Jiang argued that she would be persecuted under the family planning policy if

she were returned to China. Jiang was charged as removable for entering without a valid

entry document. She conceded removability. After a hearing, the IJ denied relief, granted

voluntary departure, and ordered Jiang removed to China. The BIA affirmed without an

opinion. Jiang then filed a petition for review, which this Court denied. See C.A. No. 06-

1169. 

On December 20, 2007, Jiang filed a motion to reopen with the BIA. She argued

that she had given birth to a second child in the United States and would be subject to

sterilization if returned to China. The BIA denied the motion; it concluded that the birth

of her second child was not evidence of changed country conditions in China. The BIA

further determined that the evidence she submitted did not establish changed country

conditions in China to support a claim of future persecution. Jiang filed a timely petition

for review.

We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a

motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.

2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary,

irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). 

An alien generally may file only one motion to reopen, and must file the motion with the

BIA “no later than 90 days after the date on which the final administrative decision was
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rendered.” 8 C.F.R. § 1003.2(c)(2). The time and number requirements are waived for

motions that rely on evidence of changed circumstances arising in the country of

nationality. Id. We must uphold the BIA’s factual determinations if they are supported

by substantial evidence. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). 

Under the substantial evidence standard, we can reject the BIA’s findings only if “any

reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

The BIA cited to prior decisions which discussed much of the background

evidence Jiang submitted. See In re S-Y-G-, 24 I&N Dec. 247 (BIA 2007); Matter of JW-S-, 24 I&N Dec. 185, 191 (BIA 2007). In Matter of J-W-S-, the BIA concluded that

China did not have a policy of requiring the forced sterilization of a parent who returns

with a second child born outside of China. In In re S-Y-G-, the BIA determined that the

petitioner had not shown changed country conditions. Jiang argues that these cases

contradict each other and should be given little weight. However, she does not discuss

the rulings of the BIA in those cases but rather cites only to the BIA’s quotations of State

Department findings. 

Jiang argues that she has submitted evidence that the BIA did not consider in those

prior decisions. However, the evidence she cites does not compel a finding that a Chinese

citizen returning with a second child who is a U.S. citizen would be forcibly sterilized. 

Jiang points out that the Court of Appeals for the Second Circuit has admonished the BIA
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for ignoring the same evidence of forced sterilization that she has submitted - two

administrative decisions and a Q&A handbook. Shou Yung Guo v. Gonzales, 463 F.3d

109, 115 (2d Cir. 2006). Here, however, the BIA cited to its opinion in In re S-Y-Gwhich addressed that same evidence on remand from the Second Circuit.

Jiang contends that the BIA did not accurately describe the findings of the 2007

State Department Profile on China in Matter of J-W-S-. Jiang did not submit the 2007

Profile with her motion to reopen. Thus, it is not part of the administrative record. Our

review is limited to the record before the BIA. 8 U.S.C. § 1252(b)(4)(A)(“[T]he court of

appeals shall decide the petition only on the administrative record on which the order of

removal is based.”). Moreover, the Profile does not support her contention that children

born in the United States to Chinese citizens will necessarily be counted for the purposes

of the family planning policy. It states that the Family Planning Commission of Fujian

Province, where Jiang is from, does not count children born abroad under the family

planning policy if they are not registered as permanent residents of China. 

Jiang asserts that the Villagers’ Committee Letter she has submitted, along with

her background information, establishes changed country conditions. In the letter, the

Villagers’ Committee informs Jiang that if she returns to China and registers her children

in the household registration, they will be considered Chinese citizens and she will have

to comply with the family planning laws. The Committee stated that Chinese citizens

with two children are targets for sterilization. Jiang points to an earlier BIA decision
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which granted a motion to reopen based on a similar letter. Here, however, the BIA

rejected the letter because it did not state who had drafted it. 

Moreover, the BIA noted that the letter was undermined by an April 2007 “Report

of Investigation” Jiang submitted. The report stated that village committees are not

authorized to make decisions on family planning issues and such notices should be

considered invalid. Jiang argues that China’s family planning policy is implemented by

local village committees but cites only to the BIA’s decision in In re J-W-S-, which

quotes the 2007 Profile’s findings that implementation of the birth control policy is the

responsibility of “local officials.” This single sentence, from a document outside the

record, does not compel a finding that the village notice Jiang submitted should be

considered valid, especially in light of evidence in the record discounting such notices.

Jiang argues that sterilizations can be forced by means other than physical

coercion, including economic persecution. While “deliberate imposition of severe

economic disadvantage which threatens a petitioner’s life or freedom may constitute

persecution,” Zhen Hua Li v. Attorney General, 400 F.3d 157, 168 (3d Cir. 2005), there is

no evidence that the potential financial penalties meet this standard. Jiang cites to the

BIA’s citation in In re J-W-S- to State Department findings that such sanctions left

women with no choice but to be sterilized. However, the BIA in In re J-W-S- concluded

that the alien failed to provide evidence that the economic sanctions would rise to the

level of persecution. 
Jiang has not shown that the record would compel any reasonable adjudicator to

conclude that she had shown that she was prima facie eligible for asylum based on

changed country conditions. Moreover, Jiang’s argument that she is entitled to file a

successive asylum application is foreclosed by our decision in Liu v. Attorney General,

555 F.3d 145, 150-51 (3d Cir 2009).

For the above reasons, we will deny the petition for review. The government’s

motion to dismiss is denied.

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